In a dramatic turnaround, a brief filed Monday by the U.S.
Department of Justice states emphatically that the Obama administration
"does not support DOMA as a matter of policy, believes that it is
discriminatory, and supports its repeal."

While gay legal activists applauded the statement as a
significant improvement over an earlier legal brief, they said they are also
disappointed that the Department of Justice still suggests that the federal
Defense of Marriage Act is constitutional.

The DOJ filed the brief in Smelt v. U.S.,
one of several federal lawsuits seeking to strike
down DOMA, which bans federal recognition of same-sex relationships.

In an earlier brief filed in the case in June, the DOJ drew
a firestorm of criticism from the LGBT community when it asserted that DOMA
addresses a legitimate need for the federal government to adopt "a
cautious policy of federal neutrality toward a new form of marriage." The
brief asked the courts to uphold DOMA in order to protect the federal
government's "scarce resources" and its ability "to respond to
new social phenomena one step at a time, and to adjust national policy
incrementally." And it stated, emphatically, "DOMA does not
discriminate against homosexuals in the provision of federal benefits."

In its latest brief filed August 17, the Justice Department
continues to urge the court to dismiss the case based "on the issues of
jurisdiction and standing alone." It disassociates itself with right-wing
contentions that government should ban same-sex marriage to promote procreation
or to favor one family structure over another. It notes instead that the
American Medical Association and several other professional medical and child
welfare groups have concluded, "based on numerous studies, that children
raised by gay and lesbian parents are as likely to be well-adjusted as children
raised by heterosexual parents."

"With respect to the merits," said the brief,
"this administration does not support DOMA as a matter of policy, believes
that it is discriminatory, and supports its repeal."

The White House also issued a statement Monday from
President Barack Obama: "I have long held that DOMA prevents LGBT couples
from being granted equal rights and benefits. While we work with Congress to
repeal DOMA, my administration will continue to examine and implement measures
that will help extend rights and benefits to LGBT couples under existing
law."

Jennifer Pizer, head of the marriage project of the Lambda
Legal Defense and Education Fund, called the brief a "dramatic improvement
over the prior one in multiple important ways."

Evan Wolfson, head of the national Freedom to Marry group,
said he was heartened "to see the administration getting its legal
position more in line with its policy position –that the so-called
Defense of Marriage Act is deeply discriminatory and needs to go."

"I hope we'll also see the White House work with
leaders in Congress to repeal DOMA as soon as possible," said Wolfson.
"But this brief is definitely a vast improvement over the last one."

The Human Rights Campaign also issued a statement,
applauding improvements in the DOJ arguments but adding, "It is not enough
to disavow this discriminatory law and then wait for Congress or the courts to
act."

The 'reasonable' defense

The brief says the DOJ is simply following a long-standing
practice of "defending federal statutes as long as reasonable arguments
can be made in support of their constitutionality, even if the department
disagrees with a particular statute as a policy matter, as it does here."

In a footnote, the brief contends that the Obama
administration must defend the law, out of "the respect appropriately
due" to Congress and to ensure that "subsequent administrations will
faithfully defend laws with which they may disagree on policy grounds."

Gay legal and political activists disagree.

There seems little doubt that presidents are expected to
enforceexisting laws, but there is no
requisite that they defend unconstitutional ones in court. The presidential oath
of office states that the oath-taker "will, to the best of my ability,
preserve, protect, and defend the Constitution of the United States."

And Lambda Legal's Pizer offered numerous examples of when
"past administrations decided a statute was invalid and not worthy of
defense." Under President Ronald Reagan, for instance, the DOJ declined to
defend the independent counsel statute, the Gramm-Rudman Defense Control Act,
and the one-house veto.

"Indeed, under the separation of powers doctrine,"
said Pizer, "it usually is understood that the administration has an
independent right and duty to exercise independent judgment about whether
particular laws passed by Congress are constitutionally defensible and only to
make defense arguments they believe to be legally sound."

"While [the DOJ attorneys] contend that it is the DOJ's
duty to defend an act of Congress," said the HRC statement, "we
contend that it is the administration's duty to defend every citizen from
discrimination."

The August 17 brief also reiterates arguments from the brief
in June, noting that federal courts so far have upheld the constitutionality of
DOMA, and it urges the district court now to "find that Congress could
reasonably have concluded that there is a legitimate government interest in maintaining
the status quo regarding the distribution of federal benefits in the face of
serious and fluid policy differences in and among the states."

Pizer said that Lambda Legal doesn't think there are any
such reasonable and legitimate arguments.

"That is where we continue to differ with the
administration," said Pizer. DOMA, she said, "was motivated purely by
prejudice and the overt anti-gay politics of the day."

Pizer said her organization is "disappointed that this
brief continues to argue that anti-gay discrimination does not deserve serious
constitutional scrutiny."

"The brief relies on old decisions that we believe no
longer apply, and on low-level court decisions that would not control [the
outcome of the case] in any event," said Pizer. "So there is more
serious discussion to be had."

But Pizer said Lambda Legal is "immensely gratified
that the administration has specifically repudiated the defamatory claims
anti-gay groups make that denying same-sex couples equality somehow benefits
children."

"It really is a new day for our community," said
Pizer. "And while we are not where we believe we should be, and much more
work needs to be done, the important progress and respectful tone of this brief
are meaningful improvements and very promising."

Gary Buseck, legal director of Gay and Lesbian Advocates and
Defenders, another key leader in the LGBT community's legal fight for equal
rights in marriage, agrees.

"We still have a fundamental disagreement with the
government as to the constitutionality of DOMA ... and believe the government
is simply wrong in stating that 'reasonable arguments can be made in support of
[its] constitutionality,'" said Buseck.

But he, too, applauded the administration's turnaround in
the brief.

"We are pleased," said Buseck, "to see that
this administration, contrary to its predecessor, is acknowledging simple
reality, i.e., that children have been, and continue to be, raised by gay and
lesbian couples and that those children grow up as well-adjusted as any other
American children."

Kate Kendell, executive director of the National Center for
Lesbian Rights, said the administration should "stop defending this
abhorrent law that hurts families and lacks any legitimate justification."

In defending DOMA on procedural grounds, the DOJ brief
appears to ignore the discriminatory effect of the law and routine aspects of
marriage. It claims the gay couple filing the lawsuit doesn't have legal
standing to challenge DOMA because they have stated no plan to seek recognition
of their California marriage license in another state and have not applied for
federal benefits.

Attorneys in the Smelt
case are due back in the federal district court in Los Angeles on Monday,
August 24. The case, in the U.S. district court for Central California, was
filed on behalf of Arthur Smelt and Christopher Hammer, who were married in
California last year during the period the state was allowed to issue marriage
licenses to same-sex couples.